T-8162-82
Director of Investigation and Research, Combines
Investigation Act (Applicant)
v.
Restrictive Trade Practices Commission and
O. Gerald Stoner (Respondents)
Trial Division, Cattanach J.—Ottawa, October 21
and 22, 1982.
Judicial review — Prerogative writs — Mandamus — Com
bines investigation — Application by Director of Investigation
and Research, Combines Investigation Act, for order of man-
damus to compel Restrictive Trade Practices Commission to
issue subpoenae to Presidents of named companies — Trial
Division, having considered scheme of Act, ruling that Director
responsible for conduct of inquiry including hearing before
Commission and production of evidence — Duty of Commis
sion to hear and consider evidence which Director believes
material and essential to inquiry — Refusal by Commission to
issue subpoenas to obtain evidence Director wishes it to con
sider tantamount to declining jurisdiction — Issuance of sub
poena analogous to practice of regular courts and an adminis
trative act — Mandamus granted to compel performance of
duty — Application allowed — Combines Investigation Act,
R.S.C. 1970, c. C-23, ss. 8, 14, 18, 21, 27.1, 47, 48 — Inquiries
Act, R.S.C. 1970, c. I-13, ss. 4, 5.
COUNSEL:
G. Henderson, Q.C. and G. Kaiser for
applicant.
B. C. McDonald and J. M. Belanger for
respondents.
C. L. Campbell, Q.C. and M. E. Barrack for
Gulf Canada and J. L. Stoik.
J. L. McDougall, Q.C. for B.P. Canada Inc.
and R. W. D. Hanbidge.
A. M. Austin for Shell Canada and C. W.
Daniel.
SOLICITORS:
Cowling & Henderson, Ottawa, for applicant.
Lang, Michener, Cranston, Farquharson &
Wright, Toronto, for respondents.
McCarthy & McCarthy, Toronto, for Gulf
Canada and J. L. Stoik.
Fraser & Beatty, Toronto, for B.P. Canada
Inc. and R. W. D. Hanbidge.
Weir & Foulds, Toronto, for Shell Canada
and C. W. Daniel.
The following are the reasons for order ren
dered in English by
CATTANACH J.: The Director of Investigation
and Research, Combines Investigation Act, R.S.C.
1970, c. C-23, (hereinafter referred to as the
"Director") had applied to this Court for an order
of mandamus directing the Restrictive Trade
Practices Commission and its Chairman to issue
subpoenae to the Presidents of those petroleum
companies named in the notice of motion.
Mandamus is that high prerogative writ avail
able for relief against a public body which fails to
perform a statutory or other duty imposed on that
body for the benefit of the applicant for the writ.
In order for mandamus to issue there must be a
duty imposed upon the body the performance or
non-performance of which is not a matter of
discretion.
Further the applicant must show that there
resides in him the legal right to the performance of
the duty by the party against whom mandamus is
sought.
The contention on behalf of the applicant,
simply put, is that predicated upon section 47 of
the Combines Investigation Act, the Director is
responsible for the conduct of an inquiry as to the
existence of conditions or practices in this particu
lar trade which may amount to a monopolistic
situation or combination in restraint of trade and
the inquiry so conducted is deemed to be an inqui
ry under the Inquiries Act, R.S.C. 1970, c. I-13.
The contention to the contrary is that when the
Director has completed his inquiry under subsec
tion (1) of section 47 and has placed that evidence
so collected and embodied in the "Green Book"
before the Commission the Director's function is
ended and the inquiry from that point forward
becomes that of the Commission as to whether it
will consider further evidence or material. This
contention is predicated upon the language of sub
section (2) of section 47.
What is intended in the language of section 47
cannot, in my view, be discovered by considering
those words in the abstract but that reference must
be had to the scheme and object for which the
statute was made. To do so, reference may be had
to the statute as a whole.
Under section 8 it is the Director who causes an
inquiry to be made to determine relevant facts.
Under section 14 the Director may terminate
the inquiry if he is satisfied the evidence is insuffi
cient but with the concurrence of the Commission
when evidence is adduced before it.
Under section 15 the Director may terminate
the inquiry at any stage and embark upon a
prosecution.
By section 27.1 the Director is charged with the
responsibility of making representations to federal
boards to maintain freedom of competition.
He is thus the watchdog of free enterprise and
competition.
Clearly, therefore, the scheme of the Act is that
the responsibility for the conduct of an inquiry is
vested in the Director and that responsibility con
tinues to lay upon him throughout the hearing
before the Commission under section 47. It does
not terminate at the outset of the hearing before
the Commission but is an on-going inquiry to be
conducted by the Director.
His responsibility is not abandoned.
That being so the question then arises as to
whether the issuance of subpoenae is merely an
administrative act or an act to be made upon a
judicial or quasi-judicial basis.
If the former is the case then mandamus will lie
to compel the performance of that duty there
being no discretion in the body which issues the
document.
If the latter be the case then there is a discretion
in the body from which it follows that mandamus
will not lie.
By virtue of section 21 of the Combines Investi
gation Act the Commission or a member thereof
has the powers of a commissioner under the In
quiries Act.
Under section 4 of that Act the commissioners
have power to summon any witnesses to give evi
dence and under section 5 have the same power of
enforcement as is vested in any court of record in
civil cases.
It follows that the issuance of subpoenae by the
Commission or a member thereof is analogous to
the issuance of a subpoena by the courts of the
land.
That is an administrative act.
Under section 48 of the Combines Investigation
Act the Governor in Council may make regula
tions for the administration and carrying out of the
Act.
In response to a query from myself I was
informed that no such regulations had been made
as to the procedure to be followed in the conduct
of an inquiry before the Commission under section
47 but that a code of procedure was laid down
applicable to the conduct of this particular inquiry
to which the parties consented.
One such matter was the issuance of subpoenae
which was hedged with conditions precedent to be
complied with. I entertain reservations as to the
validity of such procedure and whether it is bind
ing upon the parties.
It was protested that the consent of the Director
had not been given to the procedure from which it
would follow that the procedure was adopted uni
laterally by the Commission.
The premise I have accepted is that the initiative
for the conduct of the inquiry is that of the Direc
tor. That includes the production of evidence.
It is the duty of the Commission to hear and
consider evidence brought before it.
The refusal by the Commission to issue subpo-
enae to compel the attendance of witnesses to give
evidence considered by the Director to be material
and essential to the inquiry transcends a mere
rejection of evidence and is tantamount to the
Commission declining to enter upon an inquiry
which is its duty to enter. In short, it is a declining
of jurisdiction.
For the foregoing reasons the application is
allowed.
ORDER
It is ordered that the Restrictive Trade Practices
Commission or the Chairman thereof shall issue
subpoenae as requested by the applicant herein
directed to:
1. J. L. Stoik,
President and Chief Executive Officer,
Gulf Canada Limited;
2. R. W. D. Hanbidge,
President and Chief Executive Officer,
BP Canada Inc.;
3. Andrew Janisch,
President and Chief Operating Officer,
Petro-Canada;
4. C. William Daniel,
President and Chief Executive Officer,
Shell Canada Limited, and
5. Laurie Woodruff,
President,
Ultramar Canada Inc.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.